Tuesday, February 27, 2018
U.S. Supreme Court Agrees to Hear Death Penalty Case; Inmate Has Suffered Multiple Strokes & Dementia
One of my well-rounded Contracts students, Andrew Ford, pointed out to me that this week the Supreme Court agreed to hear the case of Madison v. Alabama, wherein the issue is whether execution of a prisoner violates the 8th Amendment if the inmate, who has experienced multiple strokes and vascular dementia, is now severely impaired and no longer has any memory of his crime. From the Petition for Writ of Certiorari:
[T]he State seeks for the second time to execute Vernon Madison, a 67-year-old man who has been on Alabama’s death row for over 30 years. Mr. Madison suffers from vascular dementia as a result of multiple serious strokes in the last two years, and no longer has a memory of the commission of the crime for which he is to be executed. His mind and body are failing: he suffers from encephalomacia (dead brain tissue), small vessel ischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incontinence as a consequence of damage to his brain.
Thank you, Andrew! Here's the link to comprehensive coverage on the case from SCOTUS Blog
Thursday, February 22, 2018
Federal Authorities Coordinate Filing of Charges Against Individuals and Companies on Telemarketing and Postal Mail Fraud Schemes
On Thursday, February 22, 2018, federal authorities released news of formal charges filed against individuals and companies accused of telemarketing and postal fraud schemes targeting seniors. The charges focus on more than 250 defendants, located both in and outside of the U.S.
The Federal Trade Commission's press release provides specific details from two cases filed in coordination with authorities in the State of Missouri. In the first case:
[T]he FTC and the State of Missouri charged two men and their sweepstakes operation with bilking tens of millions of dollars from people throughout the United States and other countries.
The FTC and Missouri allege that the defendants, doing business under dozens of different names, sent tens of millions of personalized mailers falsely indicating that the recipient had won or was likely to win a substantial cash prize, as much as $2 million, in exchange for a fee ranging from $9 to $139.99.
The Defendants distributed three types of phony mailers:
- Notices such as “Congratulations, You Have Just Won $1,230,946.00,” when the consumer hasn’t actually won anything;
- Fliers that claim the recipient can win a substantial cash prize by answering a simple arithmetic question and paying a registration fee, but that don’t disclose that there are multiple rounds to the “game of skill,” that the consumer will have to pay additional fees to advance to each round, and that in order to win, the consumer will have to answer a final, complex puzzle that few people, if any, can solve; and
- Mailers that appear to be notices that the consumer has won a prize of $1 million or more, but that are really just newsletter subscription solicitations.
In the second case:
[T]he FTC alleges that the defendants worked with Indian telemarketers to trick older Americans into buying bogus technical support services. Specifically, the defendants set up business accounts for the telemarketers, collected and deposited consumer payments, and provided a gloss of legitimacy to the scheme.
During my sabbatical last year, I often had occasion to answer the phone in my elderly mother's home. The majority of calls were from scammers, including those posing as the IRS, those offering "specialized health insurance," or seeking to "confirm" the homeowners' bank numbers for deposit of some kind of "winnings." I was stunned by the volume of the calls -- and the persistence of the callers. If you tried to hang up, the callers would often ring back within seconds.
Also, during my time as director of Dickinson Law's Elder Protection Clinic, I can remember one particularly troublesome case involving a so-called Jamaican lottery scam, where the senior in question had been a sophisticated investor for her entire adult life, but was unable to resist the siren song of a scammer who managed to convince her to repeatedly send him money. It was one of my first personal experiences with how dementia and financial abuse can intersect, through a particular form of early onset dementia known as FTD (frontotemporal disease). The impairment often impacts judgment and the ability to evaluate risk, including financial risk.
February 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, February 11, 2018
On February 7, 2018, the Seventh Circuit ruled as a matter of law that language in documentation attempting to create a Special Needs Trust was ambiguous. In its decision in National Foundation for Special Needs Integrity, Inc. v. Reese, the Court resolved the ambiguity in favor of the children of the Missouri woman who had established the trust, using proceeds of her personal injury settlement.
The Court, with jurisdiction that appeared to be based on diversity, ordered an Indiana foundation that was named as the trustee of the account to reimburse the estate of the deceased Missouri woman. The amount awarded is more than $243K, plus prejudgment interest. The decision by itself is interesting, especially as it touches on issues such as the intention of the settlor, a defense of laches and the roles of a law office or others in counseling the Missouri woman, who was reportedly unable to read, on how to complete the trust documents. Even more interesting is news indicating that the foundation was created by "a suspended Indiana attorney facing charges that he stole from other clients' trusts." See The Indiana Lawyer's report on Seventh Circuit Reverses, Orders Special Needs Trust Group to Pay Estate.
In the lawsuit, the foundation argued it was entitled to keep the funds designated in the trust, based on a variety of theories including laches; the laches defense failed when the court, in an extended footnote, observed there was no evidence the foundation ever notified the woman's personal representative of outstanding trust amounts, allowing the PR to believe that any proceeds had been used to reimburse the state for Medicaid expenditures. Instead, the court concluded the foundation simply transferred portions of the mother's account into other accounts, which might have been permitted under certain guidelines, if it had been clear the trust was intended to be a "pooled" special needs trust.
For another "great and timely" discussion (I have that description on good authority!) of the Foundation v. Reese case, see Arizona lawyer Robert Fleming's newsletter here. As Robert says, "the background story . . . reinforces the need for transparency and disclosure in pooled special needs trust administration -- and in fact, in all special needs trust management."
Friday, December 15, 2017
Are you familiar with the National Center on Law and Elder Rights? If you are an academic teaching courses about any aspect of elder law, disability law, Medicare or Medicaid, you will want to know more about this resource. If you are working in a legal services organization that represents older clients or disabled adult clients, you will want to now about this resource. If you are a young lawyer and just handling your first case involving home-based or facility-based care for older persons who are can't afford private pay options, you will definitely want to know about this resource. In fact, if you are a long-time lawyer representing families who are struggling to find their way through an "elder care" scenario, you too might benefit from an educational "tune up" on available benefits. And the very good news? This is a free resource.
The National Center on Law and Elder Rights (NCLER) was established in 2016 by the federal Administration for Community Living. The new entity is, in essence, a partnership project, with the goal of providing a "one-stop resource for law and aging network professionals" who serve older adults who need economic and social care assistance. Justice in Aging (formerly the National Senior Citizens Law Center) which has primary offices on the east and west coast is a key partner, working with the American Bar Association's Commission on Law and Aging, the National Consumer Law Center (NCLC), and the Center for Social Gerontology (TCSG). Attorneys at these four NCLER partners provide substantive expertise, including preparation of materials available in a variety of formats, such as free webinars on a host of hot topics. The Directing Attorney is Jennifer Goldberg from Justice in Aging and the Project Manager is attorney Fay Gordon.
It strikes me that a very unique way in which NCLER will be a valuable resource is through what the offer as "case consultations" for attorneys and other professionals. Think about that -- you may have long-experience with one branch of "elder law" such as Medicaid applications, but you have never before handled an elder abuse case with a bankruptcy problem. Here is the way to potentially get experienced guidance!
The web platform for NCLER offers a deep menu of resources, including recordings of very recent webinars and information on future events. I recently signed up for a January 2018 webinar program on elder financial exploitation and even though it is a "basics" session I can tell I'll hear about a new tools and possible remedies, as the presenters are Charlie Sabatino and David Godfrey. I just watched a recording of another recent webinar and it was very clear and packed with useful information. There is a regular schedule for training sessions -- with "basics" on the second Tuesday of every month and more advanced training sessions on the third Wednesday every month.
I confess that somehow NCLER wasn't on my radar screen until recently (probably because my sabbatical last year put me about a year behind on emails -- seriously!) but I'm excited to know about it now.
December 15, 2017 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Social Security, Web/Tech, Webinars | Permalink | Comments (0)
Wednesday, December 6, 2017
On December 8, 2017, I'm excited to be participating in a conference on The Aging Brain: Legal, Policy & Ethical Perspectives, in Phoenix, Arizona. This program is a follow-up to an interdisciplinary workshop hosted at Arizona State University's Sandra Day O'Connor School of Law in the fall of 2016. This year's presentations will take place at the the United States Courthouse in Phoenix.
The planned schedule is jam-packed with speakers I'm looking forward to hearing, including:
Welcome: Betsy Grey, Sandra Day O’Connor College of Law, ASU
Introduction: Dean Douglas Sylvester, Sandra Day O’Connor College of Law, ASU
Keynote Speaker:Richard H. Carmona, M.D., M.P.H., FACS, 17th Surgeon General of the United States, Chief of Health Innovations, Canyon Ranch, Distinguished Professor, University of Arizona
Scientific Developments in Aging and Dementia: Pre-Symptomatic Screening for Neurodegenerative Diseases
Panel Chair: Hon. Roslyn O. Silver, U.S. District Court for the District of Arizona
- Dr. Richard Caselli, Mayo Clinic
- Dr. Jessica Langbaum, Banner Alzheimer's Institute
- Dr. Cynthia M. Stonnington, Mayo C;inic
- Jalayne J. Arias, UCSF Neurology, Memory and Aging Center
- Henry T. Greely, Stanford Law School
Aging at Home
Panel Chair: Larry J. Cohen, The Cohen Law Firm
- David Coon, College of Nursing & Health Solutions, ASU
- Kent Dicks, Life365, Inc.
Panel Chair: Charles L. Arnold, Frazer Ryan Goldberg & Arnold, LLP
- Hon. Jay M. Polk, Probate Dep’t. Associate Presiding Judge, Superior Court of Arizona for Maricopa County
- Katherine Pearson, Dickinson School of Law, Pennsylvania State University
- Dr. Elizabeth Leonard, Neurocognitive Associates
- Betsy Grey, Sandra Day O’Connor College of Law, ASU
End of Life
Panel Chair: Dr. Mitzi Krockover, Health Futures Council at ASU
- Jason Robert, Lincoln Center for Applied Ethics, ASU
- Amy McLean, Hospice of the Valley
- Dr. Patricia A. Mayer, Banner Baywood & Banner Health Hospitals
Dr. Susan Fitzpatrick, President, James S. McDonnell Foundation
Introduction by Jason Robert, Lincoln Center for Applied Ethics, ASU
December 6, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Science, Statistics | Permalink | Comments (0)
Friday, December 1, 2017
We've been blogging about the fire at the SNF in Pennsylvania and the SNF in Florida during Irma. Here's an update on the Florida SNF in South Florida. Health News Florida reports that 12 of the 14 deaths are being classified as homicides. 12 Of 14 Nursing Home Deaths After Irma Ruled Homicides reports that
Authorities say the deaths of 12 of the 14 Florida nursing home patients who died after Hurricane Irma have been ruled homicides.
The Sun Sentinel reports that autopsy results from the Broward County medical examiner's office were released Wednesday.
No arrests have been made. Police spokeswoman Miranda Grossman says the investigation will continue and part of that will be determining who should be charged.
The article also notes that 2 deaths have been determined not to be related from the lack of air conditioning or electricity.
December 1, 2017 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, November 30, 2017
Recently I wrote about a high profile suit filed by AARP attorneys on behalf of residents at a California skilled care (nursing home) facility to challenge evictions.
I've also been hearing about more attempts to evict residents from Continuing Care Communities, also known as CCRCs or Life Plan Communities. For example, in late 2016 a lawsuit was filed in San Diego County, California alleging a senior's improper eviction from a high-end CCRC. The woman reportedly paid a $249k entrance fee, plus additional monthly fees for 15 years. When she reached the age of 93, however, the CCRC allegedly evicted her for reasons unconnected to payment. The resident's diagnosis of dementia was an issue. Following negotiations, according to counsel for the resident, Kelly Knapp, the case reportedly settled recently on confidential terms.
Is there a trend? Are more CCRC evictions happening, and are they more often connected to a resident's diagnosis of dementia and/or the facility's response to an increased need for behavioral supervision? If the answer is "yes," then there is a tension here, between client expectations and marketing by providers. Such tension is unlikely to be good news for either side.
CCRCs are often viewed by residents as offering a guarantee of life-time care. Even if any promises are conditional, families would not usually expect that care-needs associated with aging would be a ground for eviction.
The resident and family expectations can be influenced by pricing structures that involve substantial up-front fees (often either nonrefundable or only partially refundable), plus monthly fees that may be higher than cost-of-living alone might explain. Marketing materials -- indeed the whole ambiance of CCRCs -- typically emphasize a "one stop shopping" approach to an ultimate form of senior living.
In one instance I reviewed recently, the materials used for incoming residents explained the pricing with a point system. The prospective resident was told that in addition to the $100+k entrance fee, an additional daily fee could increase as both "medical and non-medical" needs increased. A resident who "requires continual and full assistance of others . . . is automatically Level C" and billed at a higher rate. The graded components included factors such a need for assistance with "cognition, mood, or behavior," or "wandering." All of that indicates dementia care is part of the "continuing" plan.
CCRCs, on the other hand, may turn to their contract language as grounds for an eviction. Contracts may have language that attempts to give the facility sole authority to make decisions about a resident's "level" of care. Sometimes that authority is tied to decisions about "transfers" from independent living to assisted living or to skilled care units within the same CCRC, as the facility sees care needs increasing. Even same-community transfer decisions can sometimes be hard for families. Complete evictions can be even harder to accept, especially if it means a married couple will be separated by blocks or even miles, rather than hallways in the same complex.
November 30, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Sunday, November 26, 2017
Actions by Attorneys and Their Investigators Trigger Sanctions Affecting the Underlying False Claims Act Suit
A decision earlier this year in a qui tam suit, alleging the submission of false claims to Medicare for the off-label prescription of a drug for dementia, seems especially interesting in light of recent high profile allegations involving Harvey Weinstein's alleged use of private investigators to befriend his victims in order gather information.
In the qui tam suit the drug in question was Namenda, described in the opinion as "approved by the FDA for treatment of moderate to severe Alzheimer's disease," but allegedly also promoted illegally by the companies for prescription to individuals with milder stages of dementia. In Leysock v. Forest Laboratories, et al, the United States District Court in Massachusetts dismissed the complaint as a sanction for conduct by the plaintiff's attorneys and the investigator hired by those attorneys:
The present dispute arises out of the conduct of counsel for relator, the Milberg law firm, in investigating the case. As set forth below, Milberg attorneys engaged in an elaborate scheme of deceptive conduct in order to obtain information from physicians about their prescribing practices, and in some instances about their patients. In essence, Milberg retained a physician and medical researcher, Dr. Mark Godec, to conduct a survey of physicians concerning their prescription of Namenda to Medicare patients. In order to obtain the cooperation of the physicians, Dr. Godec falsely represented that he was conducting a medical research study. Dr. Godec, at Milberg's direction, conducted two internet-based surveys as well as follow-up telephone interviews. Among other things, the physicians were induced to provide patient medical charts and other confidential medical information to Dr. Godec. Information derived from those surveys was then set out in the Second Amended Complaint in this action, and was relied on by the Court in denying defendant's motion to dismiss in 2014.
Defendants have now moved to dismiss the Second Amended Complaint as a sanction for alleged violations of attorney ethical rules. For the reasons stated below, that motion will be granted.
November 26, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)
Wednesday, November 1, 2017
This week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel." As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.
But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions. I'm sorry I did not have time to stay longer after the program, before heading to the airport. They were very clear and interesting speakers, with healthy senses of humor.
The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.
Whew! Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing? The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.
On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents. The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos. Copyright rules and the growing efforts to ensure payments are the reasons.
The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why. For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.
It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and Health Care Communities" in 2016. Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.
November 1, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 24, 2017
We have blogged several times about the issues for Medicare beneficiaries who are not admitted to the hospital but instead are on observation status. The Center for Medicare Advocacy (CMA) has released a toolkit for those Medicare beneficiaries. Here's some information from CMA about their toolkit along with helpful links.
The information in our Toolkit can help beneficiaries, families, advocates and providers understand and respond to an “outpatient” Observation Status designation. The Toolkit contains our Observation Status Infographic; Frequently Asked Questions; A Fact Sheet, Summary & Stories from our partners in the Observation Coalition; A Sample Notice (the MOON); our Recorded Webinar (slides in the printable .pdf); Beneficiary/Advocate Q&A; and our Self-Help Packet.
The Toolkit can be downloaded in its entirety or browsed online at http://www.medicareadvocacy.org/medicare-hospital-outpatient-observation-status-toolkit.
There's a great infographic explaining the observation status dilemma. You could post it or hand it out to clients. Get permission from CMA to post it on your website in the client info section! Check out the FAQ as well as the self-help packet. In addition to accessing the toolkit online, you can download the toolkit as a pdf, by clicking here.
Full disclosure-I'm a member of the CMA board.
Monday, October 2, 2017
The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds. It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."
Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners. A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law. The mother-in-law later challenged the transaction as contrary to her understanding and intention.
Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts. They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.
As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.
Not so fast. Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process.
October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 27, 2017
This is not an elder law specific topic so if that doesn't interest you, stop reading now (we have plenty of elder law specific posts in the archives). It seems like every week (if not more often) we read about a data breach. The one gathering all the headlines right now is the Equifax breach, which I'm sure you all have heard about (unless you are one of the ones without power Post-Irma). Having been a victim of ID theft and the Equifax breach, I'm a little wound up about these issues so forgive me if I get a little too "enthused" discussing this. Within 11 minutes today I got two agency emails warning me about ID theft. Social Security sent out a note about Protecting Your Social Security. Here are some suggestions from SSA:
- Open your personal my Social Security account....
- If you already have a my Social Security account, but haven’t signed in lately, take a moment to login to easily take advantage of our second method to identify you each time you log in. This is in addition to our first layer of security, a username and password....
- If you know your Social Security information has been compromised, and if you don’t want to do business with Social Security online, you can use our Block Electronic Access You can block any automated telephone and electronic access to your Social Security record...
The second email I got was a consumer alert from NAIC. Identity Theft: Protect Yourself in wake of breaches, hacks and cyber stalkers explains
Big data is big business. But it can also lead to bigger headaches when large-scale breaches expose personal information. Large companies including insurers and credit bureaus have been the victims of cyber thieves who accessed private customer information. Most recently, the Equifax breach of could affect 143 million Americans.
Identity theft occurs when a person uses your personal information to commit fraud or unlawful activity. Using your social security number or date of birth, someone may open new credit card or bank account in your name, and even take out a loan using your personal information. Affected consumers can help protect themselves with identity theft insurance—or by using safeguards provided by the impacted company. The National Association of Insurance Commissioners (NAIC) offers these consumer protection tips.
The tips include what not to carry in your wallet, what to do if your identity has been stolen, not to proactively protect yourself against identity theft and the pros and cons of purchasing identity theft insurance.
I'm just saying now... this isn't going to be the last time I write you about this. Hopefully none of you will be in my boat. Safe travels through cyber space.
Tuesday, September 19, 2017
Dispute Between Texas Senior Living Providers Sheds Light on Marketing Labels Such as "Assisted Living"
We have written on many legal issues that arise from the attempt by the senior care living industry to market their housing products. For example, see here, here and here for coverage of recent disputes and proposals affecting so-called "assisted living" or "personal care" providers.
Recently In Texas, two competitors have been arguing over the definition of assisted living.
In LMV-AL Ventures, LLC d/b/a The Harbor at Lakeway vs. Lakeway Overlook, LLC., a licensed assisted living facility, Harbor, is attempting to block operations by a new competitor, LTIL, arguing that despite the competitor's attempts to self-identify as offering only "independent living," it is really an unlicensed assisted living community. Harbor earlier had negotiated with the developers of the large-scale community for a deed restriction that would have prevented a competitor offering "assisted living" from moving in.
On May 20, 2017, the United States District Court for the Western District of Texas denied Harbor's motion for preliminary injunctive relief, concluding that Harbor had failed to satisfy its burden to establish "a substantial likelihood of success on the merits."
Part of what is interesting in this dispute is the magnitude of Harbor's efforts to prove their theory that LTIL was an assisted living community in disguise. Harbor hired a private investigator to pose as a prospective client for LTIL. The investigator tape-recorded a sales representative for LTIL.
Arguably, it seems the representative walked a very narrow line between emphasizing ways in which the planned community would meet the assistance needs of an older and potentially disabled client, while also attempting to characterize the menu of services available for purchase from an on-site home-health company as more affordable than the similar services offered by an "assisted living" facility.
During the meeting, Ms. Parker described some of the amenities and services LTIL expected to offer. She explained that LTIL intended to offer three meals a day for residents prepared by an onsite chef, housekeeping, and transportation services. . . . Ms. Parker also described how LTIL features 140 apartments with a variety of floor plans. . . . Ms. Parker stated Capitol [a "home health provider compamy]would be renting space inside LTIL and could provide care such as bathing assistance an elderly resident might need. . . . She indicated personnel would staff the concierge desk twenty-four hours a day and residents would be given a pendant to call for assistance.
Ms. Parker also explained the difference between LTIL and an assisted living facility. According to Ms. Parker, “with[ ] assist[ed] living you're paying a little bit more money but you're also getting care givers that are there on site, uh, all hours of the day. ... and you kind of pay for, the different services that you need. Some medication reminders, bathing and stuff like that. Uh, our community is an independent living.... so the residents that live there are pretty much independent. We don't provide caregivers to help do these things all the time.” . . . Ms. Parker further described how a resident may later need to move to a place that “can give her more care or an assisted living [facility]” when she needs more help.
Tuesday, September 12, 2017
We often write on this Blog about concerns or even scandals in "nursing home" care for seniors. But, increasingly senior care spans a wide spectrum of formats and identities, and the SNFs of old, both good and bad, are increasingly outnumbered by newer names. "Assisted Living" facilities -- traditionally positioned somewhere between skilled care and independent living -- are now often the target of concerns and lawsuits.
Reading the complaint in the latest suit, a class action filed in federal court in July 2017 in California against Brookdale Senior Living Inc. and Brookdale Senior Living Communities, Inc., I can see a central frustration, regardless of any issue of poor or negligent care. Brookdale is one of the largest, if not the largest providers of assisted living, especially after it acquired another large assisted living operator, Emeritus. The named individual plaintiffs, who describe their extensive impairments, including physical and mental disabilities, also describe their expectations about receiving appropriate care in "assisted living" at an affordable rate. They allege, for example:
Assisted Living facilities are intended to provide a level of care appropriate for those who are unable to live by themselves but who do not have medical conditions requiring more extensive nursing care.
In recent years, [Defendant] has increasingly been accepting and retaining more residents with conditions and care needs that were once handled almost exclusively in skilled nursing facilities. This has allowed [Defendant] to increase not only the potential resident pool but also the amounts of money charged to residents and/or their family members.
The plaintiffs complain that rates charged, alleged to range between "approximately $4,000 to $10,000 per person per month," increased at a rate of 6% to 7% percent per year in each of the last two years, at the same time that staffing levels dropped to a critical, allegedly unsafe level.
At the core of the complaint is the frustration that residents are not being provided the services they need. The legal theories include violation of the Americans with Disabilities Act, state civil rights and consumer protection laws, unfair trade practices laws, and California's Elder Financial Abuse laws, all leading to what I see as a fundamental question:
Can Assisted Living operators be held liable for failure to provide skilled care to residents they allegedly "know" need such care, or is the less-than-skilled label and license to operate a defense against such liability?
The Brookdale defendants deny the allegations of fault. For more, see Largest Assisted Living Chain in U.S. Sued for Poor Care of Elderly from California Healthline.
Thursday, September 7, 2017
CMS has released a new webpage as part of its settlement of the Jimmo case. The Center for Medicare Advocacy press release explains that "[t]he Jimmo webpage is the final step in a court-ordered Corrective Action Plan, designed to reinforce the fact that Medicare does cover skilled nursing and skilled therapy services needed to maintain a patient’s function or to prevent or slow decline. Improvement or progress is not necessary as long as skilled care is required. The Jimmo standards apply to home health care, nursing home care, outpatient therapies, and, to a certain extent, for care in Inpatient Rehabilitation Facilities/Hospitals."
The CMS Jimmo website
reminds the Medicare community of the Jimmo Settlement Agreement (January 2013), which clarified that the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met). Specifically, the Jimmo Settlement Agreement required manual revisions to restate a “maintenance coverage standard” for both skilled nursing and therapy services under these benefits:
Skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient's current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided.
Skilled therapy services are covered when an individualized assessment of the patient's clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performance of a safe and effective maintenance program. Such a maintenance program to maintain the patient's current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program.
The Jimmo Settlement Agreement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve. The Jimmo Settlement Agreement is consistent with the Medicare program’s regulations governing maintenance nursing and therapy in skilled nursing facilities, home health services, and outpatient therapy (physical, occupational, and speech) and nursing and therapy in inpatient rehabilitation hospitals for beneficiaries who need the level of care that such hospitals provide.
The website provides links to added resources, FAQs and pdfs of resources.
Sunday, September 3, 2017
Here's something to give you pause. The HHS Office of Inspector General has released an early alert. The Centers for Medicare & Medicaid Services Has Inadequate Procedures To Ensure That Incidents of Potential Abuse or Neglect at Skilled Nursing Facilities Are Identified and Reported in Accordance With Applicable Requirements (A-01-17-00504) dated August 24, 2017,
alert[s] [the CMS administrator about] ... the preliminary results of our ongoing review of potential abuse or neglect of Medicare beneficiaries in skilled nursing facilities (SNFs). This audit is part of the ongoing efforts of the Office of Inspector General (OIG) to detect and combat elder abuse. The objectives of our audit are to (1) identify incidents of potential1 abuse or neglect of Medicare beneficiaries residing in SNFs and (2) determine whether these incidents were reported and investigated in accordance with applicable requirements.
The 14 page letter provides a lot of detail about the situation and offers a number of recommendations, including immediate action: "implement procedures to compare Medicare claims for [ER] treatment with claims for SNF services to identify incidents of potential abuse or neglect of Medicare beneficiaries residing in SNFs and periodically provide the details of this analysis to the Survey Agencies for further review and ... continue to work with ... HHS ... to receive the delegation of authority to impose the civil monetary penalties and exclusion provisions of section 1150B." Longer term the alert suggests new regulations among other ideas.
September 3, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)
Friday, July 21, 2017
In the latest chapter of an ongoing dispute between a specialized care facility, Melmark, Inc., and the older parents of a disabled adult son, Pennsylvania's intermediate Superior Court of Appeals has ruled in favor of the parents.
The July 19, 2017 appellate decision in Melmark v. Schutt is based on choice of law principles, analyzing whether New Jersey's more limited filial support law or Pennsylvania's broader filial law controlled. If applied, New Jersey law "would shield the [parents] from financial responsibility for [their son's] care because they are over age 55 and Alex is no longer a minor." By contrast, "Pennsylvania's filial support law...would provide no age-based exception to parental responsibility to pay for care rendered to an indigent adult child."
The parents and the son were all, as stipulated to the court, residents of New Jersey. New Jersey public funding paid from the son's specialized care needs at Melmark's Pennsylvania facility for some 11 years. However, when, as part of a "bring our children home" program, New Jersey cut the funding for cross-border placements, the parents, age 70 and 71 year old, opposed return of their 31-year old son, arguing lack of an appropriate placement. Eventually Melmark returned their son to New Jersey against the parents' wishes, with an outstanding bill for unpaid care totaling more than $205,000, incurred over his final 14 months at Melmark.
Both the Pennsylvania trial and appellate courts ruled against the facility, concluding that "the New Jersey statutory scheme reflects a legislative purpose to protect its elderly parents from financial liability associated with the provision of care for their public assistance-eligible indigent children under the present circumstances." The courts rejected application of Pennsylvania's law as controlling.
This is a tough case, with hard-line positions on the law staked out by both sides. One cannot expect facilities to provide quality care for free. On the other side, one can empathize with families who face limited local care choices and huge costs.
Ultimately, I anticipate these kinds of cross-border "family care and cost" disputes becoming more common in the future for care-dependent family members, as the impact of federal funding cuts trickle down to states with uneven resources of their own. Some of these problems won't see the courtroom, as facilities will likely resist any out-of-state placement where payment is not guaranteed by family members, old or young.
July 21, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Housing, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, July 19, 2017
Governing ran a recent story about how states will pay for in-home care for their residents who are elders. As Demand for At-Home Care Grows, States Debate How to Pay for It considers that aging Boomers may not want to reside in nursing homes and if they stay at home, they will need care at home. With a likely greater demand for inhome care, how will it be delivered and who will pay?
[F]iguring out how to pay for more home-based care is mostly left up to the states. Medicaid is the primary payer for home- and community-based care, although states can decide whether or not they’ll offer the coverage. All 50 states and the District of Columbia do have home- and community-based programs of some type, but most states have waiting lists for their programs. Meanwhile, 59 percent of Medicaid funding goes to nursing homes, where about half of those in long-term care receive their services. “Nursing home institutions are a powerful player in the health-care setting, so there’s long been political pressure to not pay for more home health care,” says [Kevin] Prindiville [, executive director of Justice in Aging].
The article highlights California and Washington state, at opposite ends of the spectrum in handling this issue. Waivers may help, or shifting money through legislation that gives flexibility.
Tuesday, July 18, 2017
I read this article last week in the New York Times (also published by the Kaiser Health News), the topic of which is something we should consider seriously. Poor Patient Care at Many Nursing Homes Despite Stricter Oversight discusses Medicare's Special Focus status.
While special focus status is one of the federal government’s strictest forms of oversight, nursing homes that were forced to undergo such scrutiny often slide back into providing dangerous care, according to an analysis of federal health inspection data. Of 528 nursing homes that graduated from special focus status before 2014 and are still operating, slightly more than half — 52 percent — have since harmed patients or put patients in serious jeopardy within the past three years.
The article highlights some individuals' experiences, with the basis of the article concerning the Special Focus program.
Special focus facility status is reserved for the poorest-performing facilities out of more than 15,000 skilled nursing homes. The Centers for Medicare and Medicaid Services, or C.M.S., assign each state a set number of slots, roughly based on the number of nursing homes. Then state health regulators pick which nursing homes to include.
More than 900 facilities have been placed on the watch list since 2005. But the number of nursing homes under special focus at any given time has dropped by nearly half since 2012, because of federal budget cuts. This year, the $2.6 million budget allows only 88 nursing homes to receive the designation, though regulators identified 435 as warranting scrutiny.
The article also discusses lapses by those facilities once on the watch list, how a facility earns its way off the watch list and how long it typically takes to do so and the staffing ratios in such facilities.
Background information about the special focus initiative can be found on the CMS website. You can find the list of special focus facilities on CMS website. For example, here is the one published in June of 2017.
Monday, May 8, 2017
The Elder Justice Initiative (EJI) has announced the release of a guide and toolkit for creating Multi-Disciplinary Teams (MDT). The EJI has an MDT Technical Assistance Center (or MDT TAC). EJI is also offering a free webinar to help users get started creating an MDT. The email announcement explains how to get started:
The Elder Justice Initiative (EJI) is pleased to announce the launch of the new Multidisciplinary Team Guide and Toolkit. The Toolkit is designed for anyone looking to create or grow a local elder abuse MDT, regardless of their experience with MDTs. The web-based Toolkit is enhanced for use on mobile devices and contains easy-to-download PDF sample documents and citations.
On May 30, take a live walk through the Toolkit. The EJI webinar will cover many aspects of the Toolkit, including:
Layout and usability
Highlights from each chapter
Questions and feedback